We all know that the dream of Brazilian citizens is to get rid of rent by purchasing their own property. But what should we do when, when we collect the keys to the property, we discover defects, including structural ones? Find out everything here.
If you purchased a property in Brazil, you should know that currently, the real estate market is down, but in recent years, we have experienced a huge increase in property sales. This fact even led us to write several articles about its acquisition (see here).
Many of the properties sold during this warming will still be delivered to their buyers. But you need to put your anxiety aside and take some precautions when receiving the keys to your new house.
First of all, when purchasing a property from a construction company, it is highly recommended that the buyer distinguish the type of legal relationship they formalized when purchasing the property and keep all documents available about it, including advertising folders, model photos, descriptive memorial , floor plan, hydraulics, electrical, etc. These documents may, in the event of future problems, constitute evidence in your favor.
LEGAL RELATIONSHIP
An important issue that few take into consideration is knowing how to distinguish the type of legal relationship that is created during the acquisition of a property. Acquiring a property from a developer or a private entrepreneur has its differences, as the business done with a private entrepreneur is considered equivalent and is governed by the Civil Code (CC), while the one formalized with a developer is governed by the Code of Consumer Protection (CDC).
One of the main differences concerns the deadlines for claiming rights arising from the formalized legal relationship, as we will see below.
CONTRACTUAL GUARANTEE
In many cases, construction companies define the warranty period for items in the property, granting, for example, a three-year warranty for the hydraulics, two years for floors, etc. Generally, construction companies adopt a five-year period as the standard warranty period.
However, in relation to the guarantee, it is important to emphasize that there are two types of guarantee: legal and contractual. The legal guarantee, as the name suggests, is that provided for by law and is mandatory and non-derogable, and cannot be excluded, while the contractual guarantee is optional, of a complementary nature.
Therefore, the builder will not be able to offer a guarantee with terms shorter than those prescribed by law, nor will he be able to exempt himself from the guarantee through the contract, as he must comply with the terms of the law.
The only issue to note is the type of legal relationship established between the parties, as the deadlines are different for each of them. Consequently, contracts governed by the Civil Code observe the warranty periods of the aforementioned legal diploma, while in consumer relations, the Consumer Protection Code must be observed.
KEY DELIVERY
When you receive the keys to your property, it is extremely important to carry out a detailed inspection of it, in order to make sure that everything is in order, according to the contract and to avoid future problems.
We know that a property can present different types of problems. But it is important to know that, for each of them, there is a different warranty period according to the Law and the interpretation of our courts.
We can then divide these problems into four groups, namely:
One of the first actions to take concerns the size of the property. Check the actual measurement by comparing it with the descriptive memorandum, floor plan, or contract and if any difference greater than 5% of the contracted footage is found, it is possible to demand the completion of the area (ex empto action) – technically impossible in the case of properties, the reduction in values (quant minoris action) or the termination of the contract with the consequent return of the duly corrected value.
Here it is important to highlight the distinction in the legal relationship of purchase and the observance of the deadlines for claiming rights, as if there is a difference in measurements and there is no agreement with the builder, the buyer may claim his rights through an action, as long as he observes the period legal for each type of legal business.
For example: if the legal transaction is formalized with a private entrepreneur, as we saw previously, we will have a legal relationship governed by the Civil Code (CC). If there is a smaller difference in the size of the property, the deadline for claiming rights is one year, in accordance with article 501 of the CC. After the said period has elapsed, nothing further can be claimed.
It should be noted that this period is counted from the registration of the Contract with the competent Property Registry or, in the event of a delay in the delivery of the property due to the fault of the seller, from the delivery of the asset to the buyer, as described in the sole paragraph of the cited article.
However, if the property was purchased from a developer, we will have a consumer relationship and the period to be calculated is that of article 27 of the Consumer Protection Code (CDC). According to the aforementioned article, the buyer will have five years to complain about a difference in the size of the property, counting from the date of knowledge of the difference.
During the inspection, it is recommended that you also check items such as frames, window doors and their fixing, electrical and hydraulic system, painting, glass, ceramic coverings, crockery, metals and drains (see, for example, whether the water drainage is correct in the bathrooms and kitchen and that there are no leaks).
It is interesting to request the condominium rules and the floor, plumbing and electrical plans of the property.
Additionally, check common areas, such as garages, leisure areas, trash cans and fire equipment. Observe your measurements, whether there are leaks and whether the electrical part is perfect.
If structural problems or visible flaws are found, do not sign the key handover form. If the contract is the result of a consumer relationship, make a written complaint to the construction company, within 90 (ninety) days, so that repairs can be carried out. Repairs must be made by the developer within 30 days of receiving the complaint.
If it is not possible to carry out the repairs or formalize an agreement, the property owner may go to court with an action called “Obligation to Do”, seeking to repair the defect, or request compensation, or even request the termination of the contract. , with the consequent return of amounts, interest, monetary correction and, depending on the case, even compensation for moral damages.
In the case of a relationship between individuals, the seller's responsibility ends with the regular delivery of the property. For this reason, it is extremely important to carry out an inspection of the property.
We have a hidden defect, also treated as a redibitory defect, a problem that is not visible to the naked eye, or one that only appears after some time of use of the property. These are problems that make the thing unsuitable for its intended use, or reduce its value, and may therefore be rejected.
Regardless of the type of legal relationship, the builder's responsibility for hidden defects is subjective and depends only on the determination of fault, as the defect may be due to construction flaws (builder's fault) or misuse of the property (buyer's fault). ).
In the case of a consumer relationship, the lack of knowledge of the defect by the person selling the property does not exempt them from responsibilities. If you were aware of the defect or defect, in the event of making the property unsuitable for your use, in addition to returning what you received, plus the respective interest, you may have to compensate for losses and damages, as the case may be.
The good news is that, in consumer relations, the buyer is protected by article 26 of the Consumer Protection Code (CDC): he has the right to complain about the hidden defect until the end of the useful life of the good (or product) and not only during warranty, that is, the period starts to run from the discovery of the problem.
In the case of a legal relationship between individuals, the period for claiming rights is one year, counting from the actual delivery of the property.
There is nothing worse than entering a property and over time discovering that it puts your safety and that of your family at risk. Issues such as infiltrations and leaks; cracks; detachment of concrete and others in general, which pose a risk to the building, are subject to termination of the legal transaction or compensation, as the case may be.
The compromise of a work encompasses issues related to its safety and soundness. Of a more serious nature and with more comprehensive legal protection, it refers not only to risks of ruin of the work, but also encompasses construction defects that make the property unsuitable for its intended use.
In the same way as in the previous cases, there are also different deadlines for the buyer to claim their rights in relation to the commitment of the work on properties acquired through individuals or through consumer relations.
In relationships between individuals, governed by the Civil Code, the legal guarantee is five years, with the seller being responsible for security in relation to the soil materials. The deadline must be counted from delivery, but there are judgments that allow counting the deadline from knowledge of the problem.
Here we have a caveat: if the intention is to undo the legal transaction, the buyer will have 180 days, from becoming aware of the facts, to take the appropriate legal action. In the case of compensation due to problems that compromise the work, putting its safety and soundness at risk, the period is ten years, in accordance with the general rule of the Civil Code.
In consumer relations, where the property is acquired through a developer and regulated through the Consumer Protection Code, the deadline for requesting repair of damages due to the compromise of the work is five years, counted from the knowledge of the damage and who is responsible for it.
The warranty period, in turn, is the same as that established in the Civil Code, that is, five years and the buyer has the same period to take legal action against the builder, due to defects that compromise the work. The deadline must be counted based on the knowledge of the problem and awareness of the person responsible for the issue, and it is also necessary to prove that the issue arose within the legal guarantee period.
Author: FRANCÊ Advogados. Automatic translation by Google.
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